HKSAR v. Ahmed Waqar (also known as Mohd Waqar Ahmed)

DCCC 307/2020

[2021] HKDC 493

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 307 OF 2020

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REASONS FOR SENTENCE

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1.Mr Ahmed pleaded guilty before me to 3 charges on a Charge Sheet which has a total of 6 charges on it.  The charges he pleaded guilty to are Charges 3, 4 and 5, as follows.

2.Charge 3 is Transfer to another without reasonable excuse a travel document, contrary to section 42(2)(a)(ii) of the Immigration Ordinance, Cap 115.  Particulars are that Mr Ahmed, on 13 December 2017, in Hong Kong, transferred to a person known as “Zaheer Khan” without reasonable excuse a travel document, namely one British Passport in the name of Ahmed Waqar.

3.Charge 4 is Transferring an identity card to another person, contrary to section 7AA(1)(a) of the Registration of Persons Ordinance, Cap 177.  Particulars are that Mr Ahmed, on 13 December 2017, in Hong Kong, without lawful authority or reasonable excuse, transferred to a person known as “Zaheer Khan” an identity card in the name of Ahmed Waqar.

4.Charge 5 is Furnishing false particulars to a registration officer, contrary to regulation 13A of the Registration of Persons Regulations, Cap 177A.  Particulars are that Mr Ahmed, on 14 December 2017, in Hong Kong, made a statement to a registration officer, namely an Immigration Officer Wong Chun Mun, alleging that the identity card in the name of Ahmed Waqar, had been lost, knowing that such statement was false in a material particular.

5.The prosecution asked that Charges 1, 2 and 6 be left on court file, not be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

Facts admitted by Mr Ahmed

6.On 13 December 2017, Mr Ahmed checked in at the check-in counter of Hong Kong Airline at Kowloon Station.  The ground staff issued a boarding pass in his name for a flight from Hong Kong to Vancouver, Canada.

7.On the same day, that boarding pass was used.  A Pakistani male named Abbas was intercepted at Vancouver International Airport when he attempted to enter Canada with Mr Ahmed’s British Passport.  He was also found to be in possession of Mr Ahmed’s HKID card.

8.On 27 March 2019, Mr Ahmed revealed under caution the following:-

(a)  On 13 December 2017, Mr Ahmed checked in at the Hong Kong Airline check-in counter with “Zaheer Khan” by presenting his own British Passport and received a boarding pass; he also sold his British Passport and HKID card to “Zaheer Khan”; and

(b)  He positively identified the Application Form for a permanent identity card that he submitted to the Immigration Department on 14 December 2017 in which he lied about losing his HKID card on 11 December 2017 because he wanted to get a new HKID card.

Criminal record

9.Mr Ahmed previously enjoyed a clear record.

Antecedents

10.Mr Ahmed is aged 30 (27 at the time of the offences), educated to secondary or below level, has been a security guard, and lives in Kowloon.

Mitigation

11.Mr Peter Pannu of counsel mitigated on behalf of Mr Ahmed.

12.The following is a summary of the mitigation submissions.

13.Mr Ahmed was educated to secondary level and he has 4 other siblings. Parents have passed away.  Sometime in July 2010, Mr Ahmed was diagnosed with brain cancer and underwent surgery that removed certain affected parts of the brain.  Since then, he had presented symptoms of deterioration of his mental faculties.  His responses and reasoning are dulled and requires assistance from his siblings.  He could not find a job and at the time of the incident was doing relieving security work.

14.He has been referred to a neurologist by a psychiatrist to attend to his condition.  In this connection, Mr Pannu submitted on Mr Ahmed’s behalf copies of the following:-

(a)  a medical memo under the hand of Dr Cheung Wai Him dated 25.2.2021 together with enclosures (25 pages); and

(b)  a letter regarding Data Access Request under the hand of Mr David Chen for Hospital Chief Executive of QEH dated 27.8.2020 with enclosures (4 pages).

15.For completeness and wholly unrelated to Mr Ahmed’s brain condition, Mr Pannu also submitted a photograph of a letter dated 10.1.2021 certifying Termination of an Isolation Order previously issued under section 23 of the Prevention and Control of Disease Regulation.

16.The reason for committing the offences was that Mr Ahmed was promised a sum of $20,000 for selling the passport and the ID card and the sum would be paid upon the user of his document(s) successfully reaching Canada.  As the user Abbas was intercepted in Canada, Mr Ahmed would not be getting any payment from the crime.

17.Mr Ahmed voluntarily attended the interview called for by the Immigration Department and admitted his crime and offered his pleas of guilty.

18.Mr Pannu submitted on Mr Ahmed’s behalf two mitigation letters written respectively by Mr Ahmed’s brother and aunt.  The contents are generally that since his surgery a few years ago, Mr Ahmed has had difficulty living a normal life and he was tricked by bad elements into selling his personal documents and re-applying for the same; that he needs the support of others even to live through daily life; that he has been a kind and honest person well regarded by family and friends.

19.It was submitted that the brain surgery on Mr Ahmed had impacted his faculties to the extent that he was vulnerable to abuse by those bad elements behind the scene.

20.Mr Pannu referred to the sentencing cases of HKSAR v Ng Wing Fat, HCMA 504/2006 (and the case of R v Wong Wing Tong, HCMA  224/1990, referred to in para 6 therein but whose judgment is not otherwise available), and HKSAR v Liaqut Ali Khan, HCMA 278/2009.

21.Further, Mr Pannu asked the court to consider suspending the sentence given the unique circumstances of Mr Ahmed.  By referring to Secretary for Justice v Wade [2016] 3 HKC 274, Mr Pannu reminded the court that it is now established that a sentencing court is not required to look for “exceptional circumstances” before it could suspend a sentence; all that is required is for the court to have regard to all the circumstance of the commission of the offence and the circumstance of the defendant.

22.Mr Pannu submitted that Mr Ahmed was all along willing to assist the authorities in relation to the other personalities involved.  However, prosecution seemed not to be interested.

Psychiatric and medical reports

23.On 22 March 2021, I ordered a psychiatric report and, if it can be arranged, a neurologist’s report on Mr Ahmed.  What came back were a psychiatric report and a medical report.

24.The psychiatric report confirmed that Mr Ahmed had a total excision of his left temporal lobe of brain in December 2008 because of brain tumor which was followed by an adjuvant radiotherapy of brain in the same year.  An MRI scan in 2020 showed no recurrence of tumor.  There was no record of epileptic seizure in the past 5 years.  Investigation by electroencephalogram (EEG) in January 2021 did not show any remarkable findings but mild cerebral dysfunction, which can be compatible with his past surgery.  Mr Ahmed has no past history of any psychiatric disorder.  Mr Ahmed knew what he had done in the alleged offence was wrong.  He admitted he had not made any serious mistakes at work as security guard and there was no particular difficulty for him to live in the community.  No sudden change of consciousness or epileptic seizure was observed in the past few weeks.  The Psychiatrist concluded by saying that there was no evidence of any psychiatric disorder or neuropsychiatric manifestation of brain disease found in Mr Ahmed; that it was likely that he understood what he did in the offence was wrong during the material time.

25.The medical report started by saying that after the excision and radiotherapy done in 2008, Mr Ahmed defaulted in neurosurgery follow-up clinic.  It also reported an admission of Mr Ahmed on 22 July 2020 to the Queen Elizabeth Hospital via A&E during which Mr Ahmed presented with two episodes of syncope on the night before, both with spontaneous full recovery. On admission, vital signs were normal and physical examinations including neurological system were unremarkable.  The index episode was (sic) suspected to be vasovagal syncope.

Sentence

26.I have considered all the mitigation submissions.

27.Of the sentencing cases referred to by Mr Pannu, for Charges 3 and 4, I found the case of Liaqut helpful.  I shall adopt the same starting point as suggested there, that is 18 months starting point for each of the present Charges 3 and 4.

28.For Charge 5, I found the case of Ng Wing Fat useful and adopt the same starting point as suggested therein for a similar offence, that is 6 months starting point for the present Charge 5.

29.Prosecution informed me that the Immigration Department having looked at the material supplied by Mr Ahmed was of the view that it was not of practical use.  As such, that is normally the end of the matter as far as assistance to the authorities is concerned: see HKSAR v Kilima Abubakar Abbas [2018] 6 HKC 35, paras 83-85.

30.Having looked at the psychiatric and medical reports of Mr Ahmed, I am not satisfied that the brain surgery on Mr Ahmed had impacted his faculties to the extent that he was vulnerable to abuse by those bad elements behind the scene.

31.Having heard Mr Ahmed give live evidence from the witness box, I do not accept Mr Ahmed was under any compulsion or duress when he committed these offences.  The short reason is that when being interviewed by the Immigration Department under caution, although Mr Ahmed voluntarily admitted to the offences, he did not tell the officer anything about being threatened by others to commit the offences or the circumstances of the threat.  When asked under cross-examination why he did not do so, he said he was frightened and he forgot.  I do not believe him even bearing in mind the lower standard of proof and that he is a person of previous clear record, and there was a narrative in private doctor Dr Cheung Wai Him’s memo dated 25.2.2021 that “[Mr Ahmed’s] memory deteriorated and lost his way home recently”.

32.Mr Ahmed pleaded guilty to the offences in time and shall be entitled to the full 1/3 discount.  For his clear record, I will give him an extra month off after the 1/3 reduction in the case of Charges 3 and 4; and 10 days off in the case of Charge 5.  I can find no other mitigating factors of sufficient weight to warrant any further discount.

33.I do not see any grounds which can justify the suspension of the imprisonment term.

34.The offences subject of Charges 3 and 4 happened at the same time; the sentences for them can be made to run concurrently with each other.  Charge 5 is separate and adds to the gravity of the entire criminal conduct and ought to be reflected in the final sentence to be imposed.  Subject only to the principle of totality, the sentence for Charge 5 should run consecutively to the other sentences.

(Mr Ahmed, please stand)

35.For Charge 3, Mr Ahmed shall go to prison for 11 months.  For Charge 4, he shall go to prison for 11 months.  For Charge 5, he shall go to prison for 3 months and 20 days.  I order that the sentences for Charges 3 and 4 are to run concurrently with each other.  I further order that 2 months of the sentence for Charge 5 is to run consecutively to the sentences for Charges 3 and 4, making an aggregate sentence of 13 months’ imprisonment.